Push to Amend Title VII to Protect Sexual Orientation & Gender Identity Resurfaces Following Orlando Shooting

Following the mass shooting at an Orlando nightclub on June 12, 2016 (the “Orlando Shooting”), Lesbian, Gay, Bisexual, and Transgender (“LGBT”) rights groups and their Congressional supporters are rekindling efforts to pass the Equality Act, which would amend Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit discrimination based on sexual orientation and gender identity.[1]  This article analyzes the Equality Act and its potential impact on employers.

The Equality Act

Senators Jeff Merkley (D-OR), Tammy Baldwin (D-WI), and Cory Booker (D-NJ), along with Representatives David Cicilline (D-RI) and John Lewis (D-GA) introduced the Equality Act in Congress on July 23, 2015.[2]  The proposed Act, which would amend Title VII to include employment protections for individuals based on sexual orientation and gender identity,[3]  has stalled in the House and Senate Judiciary Committees.[4] However, following last week’s Orlando Shooting, Equality Act supporters are reigniting efforts to pass the Act, touting that the Act’s passage would send a strong signal in support of the LGBT community.[5]  The Act enjoys wide support from Democrats, including President Obama and the party’s presumptive Presidential Nominee Hillary Clinton, along with several major corporations, such as Apple, Levi Strauss & Co., General Mills, and Facebook,[6] but has only marginal support from Republicans.[7]  Despite the push, it is unlikely the Equality Act will become law this legislative session given that only approximately forty (40) legislative days remain during the legislative session due to the Presidential political conventions and elections.[8]

Potential Impact on Employers

Many employers already include protections for employees based on sexual orientation and/or gender identify and twenty (20) states, including Colorado, currently prohibit discrimination in employment based on sexual orientation and gender identity.[9]  For employers in those states, amending Title VII through the Equality Act will likely have minimal impact.   Employers in other states without such state laws will have to modify their policies and practice if the Equity Act passes.  If that occurs, employers covered by Title VII will need to: (1) ensure that company policies that prohibit discrimination include protections for sexual orientation and gender identity; (2) review application forms and hiring practices to ensure there is no implicit bias against individuals based on sexual orientation and gender identity; and (3) train staff and management on updated policies and protections.  Campbell Litigation will track the Act’s progress and report back when further updates are available.

[1] Erin Kelly, Shooting reignites push for anti-discrimination bills in Congress, USA Today (June 13, 2016). Title VII currently prohibits discrimination of employees of employers with 15 or more employees based upon race, color, sex, religion, and national origin.  See 42 U.S.C. §§ 2000e(b), 2000e-2.

[2] H.R. 3185 (2015); S. 1858 (2015).

[3] Arthur S. Leonard, On Pride’s Eve, the State of Transgender Equality, Gay City News (June 9, 2016).  The Equality Act would also amend other federal statutes to provide protections to individuals in “housing, public accommodations, credit, educational institutions, and all programs receiving federal financial assistance or operated by federal contractors[.]”

[4] Kelly, supra note 1.

[5] Id.

[6] See Stephen Peters, Major Corporations Announce Support for Landmark Federal LGBT Non-Discrimination Legislation, Human Rights Campaign (July 23, 2015); see also Corporate Giants Announce Support for Federal LGBT Non-Discrimination Protections, Human Rights Campaign (July 28, 2015).

[7] Leonard, supra note 3.

[8] Kelly, supra note 1.

[9] See Why the Equality Act? Human Rights Campaign (http://www.hrc.org/resources/why-the-equality-act) (last accessed June 16, 2016).